In the Lily Thomas case, the apex court declared that an MP or an MLA would stand disqualified immediately upon conviction.
According to experts, Gandhi must challenge the trial court order convicting him under IPC’s Sections 499 and 500, having the maximum possible punishment of two years and also challenge the notification pertaining to his disqualification from the Lok Sabha.
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Speaking to IANS, senior advocate Sidharth Luthra said after the 2013 Supreme Court decision in Lilly Thomas, which was reaffirmed in Lok Prahari matter in 2018, it is very clear that once the conviction takes place and sentence for two years comes into the picture, disqualification happens and the Lok Sabha Secretariat notification is the administrative aspect of it.
Luthra, a former Additional Solicitor General, further added that if Gandhi secures a stay of conviction, then he can go to the Lok Sabha Speaker and request to withdraw the notification or keep the notification in abeyance, and the stay of conviction will allow him to fight the 2024 election.
Interestingly, Lakshadweep MP Mohammad Faizal P.P. is still awaiting entry into the lower House, even though the Kerala High Court stayed his conviction and 10-year sentence in January this year.
Senior advocate Aman Lekhi said Gandhi should secure a stay on the conviction and sentence from the higher court and he should also challenge the notification issued by the Lok Sabha Secretariat.
Lekhi, also a former Additional Solicitor General, clarified that the notification is not illegal against the backdrop of the apex court judgment, but in the overall picture, it appears that the notification was issued in haste. He further added that the Election Commission should also hold its hand, after Gandhi’s disqualification from the Wayanad parliamentary constituency, in announcing a by-election.
Former Chief Election Commissioner of India S.Y. Quraishi said after Gandhi’s conviction is stayed by the court, the Lok Sabha Secretariat notification would be annulled. He further added that the notification is bad optics and points at desperation shown by the government.